Gumpenberger: Appeal for TDIU doesn't necessarily include appeal for higher rating

Gumpenberger v. McDonough, 35 Vet.App. 195 (2022)

HELD: Because entitlement to TDIU and a higher rating involve different considerations, an NOD that expressly appeals for TDIU does not encompass an appeal of the TBI rating.

SUMMARY: In May 2013, VA granted a 70% rating for TBI and denied service connection for a psychiatric condition and TDIU. The following month, the veteran appealed - identifying service connection for the psychiatric condition and TDIU only. The RO continued to deny both in a Statement of the Case that the veteran appealed with a timely VA Form 9. In December 2015, he withdrew his appeal for service connection for a psychiatric disorder - so the only remaining appeal issue was entitlement to TDIU.

In July 2016, VA reviewed the TBI rating on its own - and granted 100%. The veteran’s attorney sought attorney fees on that 100% award. VA denied fees because the agency re-processed the TBI claim in accordance with the Secretary’s authority to award equitable relief – and the resulting favorable decision was not due to an appeal.

On appeal to the Board, the attorney argued that the withdrawal of the psychiatric claim was “conditioned on the grant of TDIU” – and that the “avenue to 100% is immaterial.” The Board continued to deny fees because the 2013 NOD was for TDIU and the psychiatric condition only – and the 100% rating for TBI was the result of VA’s own internal review.

On appeal to the CAVC, the attorney argued that (1) relevant statutes don’t require specificity in an NOD (38 USC §§ 5904(c)(1), 7105(a)); (2) VA regulation requiring identification of specific issue is inconsistent with statutes; and (3) TDIU & 100% are “different means to the same results.”

The Court disagreed based on the statutory language (7105(a)) and surrounding provisions, specifically § 7105(d) that says a Statement of the Case must provide a summary of evidence with the issue or issues “with which disagreement has been expressed.” VA’s regulation, 38 CFR § 20.201, is a valid interpretation of the statute. Further, the issues of entitlement to an increased rating for TBI and TDIU have different requirements. While an appeal for a higher rating can include entitlement to TDIU, “teh reverse is not necessarily true.”

Appealed to the Federal Circuit on June 9, 2022.

Advocacy note: In order to preserve the appropriate effective date for a higher rating, to include TDIU, you must appeal all relevant issues that could potentially impact employability.